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Rep. Richardson's Update- October 12, 2007
Measure 49—The Dark Politics of Public Deception
 I
was taught as a boy to play fair. We all were. Sometimes
when we grow up, we bend the rules as far as possible to
get what we want, even at the price of fairness, honesty
and integrity. Certainly such temptation exists in
politics and we have only to look at Measure 49 to prove
it.
Ballot Measure
49 has a Ballot Title that states: “MODIFIES MEASURE
37; CLARIFIES RIGHT TO BUILD HOMES; LIMITS LARGE
DEVELOPMENTS; PROTECTS FARMS, FORESTS, GROUNDWATER. Such
Ballot Titles are generally required to be written so they
are neutral and accurate. The truth about Measure 49 has
now been publicly exposed, and, regardless of how you feel
about Measure 37, the story of the manipulation and abuse
of power used to place Measure 49 on the November ballot
is an embarrassment to Oregon and a blow to citizen
confidence in our State government. Consider the
following:
Willamette Week’s October
11, 2007 article,
“Truth
And Consequences – Nothing Was Finer for Measure 49ers
Than Their Unusual Path to the Ballot,” by Pulitzer
Prize winning reporter Nigel Jaquiss courageously sets
forth the intrigue and collusion used to stack the deck
against proponents of Measure 37. Private emails produced
in a recent law suit have disclosed Oregon State officials
and 1000 Friends of Oregon representatives carefully
crafting the language of Measure 49’s Ballot Title and
Explanation, then passed
House Bill 2640 which circumvented all laws that
ensure Oregon voters get fair and balanced Ballot Titles
and Explanations to use when deciding how they should vote
on a Referral from the Legislature.
It is now revealed that
Oregon’s AFL-CIO Union President Tim Nesbitt (who Governor
Kulongoski made a “Deputy Chief of Staff” shortly after
the union helped ensure the Governor’s re-election in
2006), used the “Governor’s Opportunity PAC” money to
conduct polls, hire consultants and determine what wording
would encourage voters to vote for a ballot measure that
would rewrite Measure 37 and effectively restore Oregon’s
pre-Measure 37 land use laws. The results became Measure
49 by circumventing all protections voters usually have to
ensure fairness and neutrality.
The Willamette Week’s
article discloses how Nesbitt performed his subterfuge in
collaboration with Bob Stacey, Director of 1000 Friends of
Oregon, who “wanted to make sure any prospective ballot
title would reflect proponents’ views, rather than
neutrality.” One email Stacey wrote to Nesbitt states:
“This is exactly what I’ve hoped would happen: you pick
the best people to draft the title for the measure the
legislature refers out and don’t leave it to chance or
Legislative Counsel”
From the article it
appears Nesbitt and Stacy organized a team of pollsters,
consultants and lawyers who conducted polls and focus
groups to determine the precise language needed to obtain
a “YES” vote from confused voters who would think they
were voting to “fix” Measure 37, when, in essence, they
would be removing its key provisions and retaining the
very land use problems Measure 37 was intended to correct.
Jaquiss’ article goes on
to state:
“The group tested
ballot language in March and April to determine which
words would have the greatest chance of overturning
Measure 37. Nesbitt says the focus groups and polling
provided information about exactly how voters felt about
Measure 37 and how they would like to see it fixed.
“Proponents also discussed other strategies such as
deliberately making the ballot summary so long that
county elections officers would leave it out of the
Voters’ Pamphlet, leaving voters with only the carefully
chosen ballot title to consider. “I don’t see huge
advantages to the words added to the summary to expand
it,” Measure 49 campaign strategist Liz Kaufman wrote in
a June 6 email to Nesbitt and Stacey. “I realize that
was done in order to try to make it so long that
counties won’t print it, but it doesn’t seem to add much
value through it’s [sic] actual meaning.” (Proponents
ultimately shaved the summary down to 125 words).
“They also debated how
neutral the measure’s explanatory statement should be.
In a June 6 email to Land Use Conservation and
Development Commission director Lane Shetterly, Rep.
Greg Macpherson (D-Lake Oswego) and Sen. Floyd Prozanski
(D-Eugene), Nesbitt wrote, “We should decide if you want
to bypass the process for an Explanatory Statement
Committee and draft our own Explanatory Statement as
well. I would argue against doing anything differently
with the Explanatory Statement process, since that is
explicitly provided for both initiatives and referrals
and allows for input from both proponents and
opponents.”
“Ultimately,
legislators ignored Nesbitt’s advice.
On June 25, the same day
they referred Measure 49 to voters, lawmakers passed
House Bill 2640 sending a pre-selected ballot title,
summary and fiscal impact statement directly to the
voters. HB 2640 passed the Democratically
controlled Legislature on a party line vote.”
So what is the truth
about Measure 49?
Measure 49 is sold as
creating an “express lane” for approving 3 homes and in
other circumstances up to 10 homes for those landowners
who have been deprived of land use rights and values by
government land use laws. In reality, complying with
Measure 49 requirements are so burdensome, time-consuming
and expensive that few landowners will ever be able to
qualify it the measure’s provisions.
For instance, the
three-home “express lane” approval process applies only to
certain locations, such as land outside Urban Growth
Boundaries. A maximum of three dwellings could qualify for
any land designated as “high-value farm or high-value
forest land.” On the surface such a designation may sound
reasonable, but the definitions of Measure 49 Article 2
sub-paragraph (10) expand those terms to include most of
the Rogue Valley, Umpqua Valley and Willamette
Valley—approximately 85% of Oregon’s population.
Even those Oregon
property owners who might be able to qualify for three
homes (note the three-home-approval includes any
residences already existing on the property), will rarely
qualify for actual approval of their claims. Measure 49
requires the landowner to overcome 6 important hurdles
before qualifying for approval of the claim. One of the
hurdles is almost insurmountable.
Section 6 states: “…to
qualify for a home site approval under this section the
claimant must establish that: (d) One or more land
regulations prohibit establishing the lot, parcel
or dwelling.” (Underlining added.)
Note, the actual approval
hinges on whether or not the landowner was “prevented” and
not merely “restricted” from building on the property by
land use laws enacted since the property was obtained.
Measure 37 used the word “restricted.” Measure 49 uses the
word “prevented.” What a difference changing a single word
can make. Thus, if a farmer lost the right to build a farm
house because a subsequently imposed rule requires his
farm must produce $80,000, he would not qualify under
Measure 49. The $80,000 rule is merely a “restriction” on
building a home, but does not “prohibit” building the
home. Oregon land use laws have many restrictions and few
prohibitions.
For those landowners who
live in the Rogue Valley, Willamette Valley or other
Oregon population centers, different rule apply. The bold
print of Measure 49 would grant permission to build up to
10 homes. The fine print in Measure 49 makes qualifying
almost impossible for Oregon landowners, for the following
reasons:
First,
such a landowner must have already filed a Measure 37
claim or filing a Measure 49 claim is prohibited.
Second,
the landowner must obtain and pay for two formal
appraisals—one based on the theoretical value of the land
the year before the restriction was imposed and one based
on the theoretical value of the land a year following the
land use restriction.
Third,
the landowner must obtain and pay for two such appraisals
for every land use restriction that could prevent the
building of homes on the land—often there are multiple
restrictions on a single piece of property.
Fourth,
the landowner must pay for the government’s costs to
process the claim, including, but not limited to its
review of the landowner’s multiple appraisals, the
appraisals submitted by opponents of the landowner’s
claim, and the government’s own appraisals.
Fifth,
computations are to be based on the interest rates of a
specified form of Treasury Bills, notwithstanding the fact
that such T. Bill have not been issued since 2001.
Sixth,
the landowner must be willing to fight and pay the
litigation expenses to defend his or her claim against any
person or organization that wants to challenge the claim
in court. Measure 37 enable the landowner to recover its
litigation expenses if the landowner prevailed. Measure 49
changes the law and denies the landowner the right to
recover such costs.
Seventh,
notwithstanding use of the term “Express Lane,” the
government has no firm time limits on how long it can take
to process the landowners’ claims. Since most folks who
have owned property long enough to qualify for a Measure
49 claim are elderly, just dragging out the process for
years can prevent a senior landowner from qualifying under
Measure 49.
Finally,
Measure 49 excludes all claims if there was any possible
use for the property that was worth more than “residential
use.” Section 7 sub-paragraph (8) states:
“Relief may not be granted
under this section if the highest and best use of the
property was not residential use at the time the land use
regulation was enacted.” (Emphasis added.)
Essentially, subparagraph
(8) states that if there was some possible use for a
landowner’s acreage that would have made that landowner's
property worth more that it was worth as a residence at
the time land use law changes deprived the landowner from
being able to build a dwelling, then that landowner will
have no Measure 37 rights whatsoever.
I called a former County
Attorney who is an expert in land use issues. I asked the
following question:
“If a rural landowner
needed to know what options were available to meet the
definition of ‘highest and best non-residential use’ for
his rural acreage, what uses would be on the list?”
Off the top of his head
he gave me the following:
• Golf course
• Cemetery
• Aggregate mine (sand and gravel)
• Rural commercial gas station, convenience store, etc.
• Wine Tasting Room (under certain circumstances)
• School
• Church (If more than 3 miles beyond UGB)
• Recreational Park (fishing ponds, hunting, mountain
biking)
• Ecological Park
• Animal Reserve
• Dog kennel
• Shooting Range
• Privately Owned Campground (under certain circumstances)
• Resort
• Landing Strip for private aircraft
• Horse Stables
• Domestic Plant Nursery
Measure 49 is a bill
being sold as a solution, while delivering nothing but
more expense, delay and broken promises to Oregon
citizens.
In conclusion, the
collusion, manipulation and deception inherent in drafting
Ballot Measure 49 is an abuse of governmental power. It is
one thing to fight against Measure 37 if you are one of
the 39% who voted against it, but it is an entirely
different matter to manipulate the system in an overt
attempt to mislead Oregon voters with a biased, one-sided
distortion of the truth in order to accomplish your
political agenda.
Measure 49 violates the
fundamental democratic principle of fairness. Every
citizen who values honesty in government should vote
against Measure 49. Regardless of how they might feel
about Measure 37, Voting NO on Measure 49 is a statement
against dirty politics. Defeating Measure 49 would force
those who have attempted to abuse their political power to
go back to the Legislature and craft a Measure 37
compromise using the political system as it was designed
to operate. As one liberal blogger put it, “If they can't
win the vote with the truth perhaps they should not win.”
One final thought. For
those who would like to see a comparison of Measure 49 and
Measure 37, see Portland attorney James D. Zupancic’s
click
here for a detailed chart.
Sincerely,
Dennis Richardson
State Representative
District Office
55 South 5th Street
Central Point, OR 97502
Tel: (541) 601-0083
Fax: (541) 664-6625
E-Mail:
rep.dennisrichardson@state.or.us
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